Legal Aid Ontario is currently reviewing submissions to proposed new rules to govern legal aid in Ontario.
The Legal Aid Services Act, 2020 (LASA), which will govern legal aid in Ontario, was passed in July 2020. Before the new law comes into effect, LAO must create rules to guide and support its implementation.
Between April 21 and May 20, LAO asked for input and hosted meetings with FOLA (as a part of ASLA. In one meeting, the Attorney General was also present.
FOLA also attended a few meetings with ASLA to coordinate a group Submission.
The deadline for submissions has now passed but LAO still has the Draft Rules available to view on their special website.
PROVINCIAL LAW ORGANIZATION SUBMISSIONS
LAW ASSOCATION SUBMISSIONS
Legal Aid Ontario has expanded its “second chair” mentoring program to better assist the professional development of private bar lawyers working on legal aid cases.
Previously, mentees could not work at the same firm as their mentors. Now, a pilot expansion of the program will permit in-firm mentorship of lawyers from equity-seeking groups. Additionally, LAO will endeavour to match mentees with mentors based on identification, location and area of law, if requested.
Click here for full details of LAO’s expanded second chair program that includes links to further information and relevant forms on LAO’s web site.
Any follow up questions can be directed to email@example.com.
Legal Aid Ontario has made a number of changes to their services to help serve clients better and to help ensure facilitate participation by the private bar during COVID-19.
Tariff hours increase
Effective January 1, 2021, LAO has increased the legal aid certificate tariff hours to prepare for a subsequent detention review hearing from one to three hours. With this change, lawyers will be paid for three hours to prepare for any detention review hearing, in addition to the actual time of the hearing.
LAO launched an Immigration Detention Representation Program (IDRP) in January 2021 on a one‑year pilot basis.
Updating the way LAO pays lawyers is an important part of LAO’s Modernization program that aims to modernize Ontario’s legal aid system.
To this end, LAO held consultations in early 2021 according to area of law and Legal Aid Ontario prepared consultation decks to help guide the discussion. The areas of law are: Criminal; Family and Child Protection; Immigration & Refugee; and Mental Health Law.
In light of the COVID-19 Pandemic, FOLA, through ASLA, called on the Attorney General of Ontario to support an increase in funding to Legal Aid Ontario. We also sent a letter to the federal Minister of Justice requesting funding for Refugee Legal Aid.
Due to the impact lower interest rates have had on the Law Foundation and the subsequent funding shortfall to LAO's budget, also as a result of COVID-19, on Aug 20, FOLA also sent a letter to the Federal Minister of Justice.
As you may be aware, FOLA is a member of the Alliance for Sustainable Legal Aid. Meetings are held frequently (including during the pandemic) and if you'd like to jump to our pre-Covid-19 related content regarding legal aid, click here.
FYI - For LAO's most recent data showing the racial make-up of clients who use certificate services, click here.
Legal Aid Ontario has launched a new program that uses both private practice and LAO staff lawyers to provide legal representation to all unrepresented immigration detainees in their detention review hearings.
The Immigration Detention Representation Program (IDRP) is a free service available to anyone in immigration detention in Ontario who would like representation in a detention review hearing. No application in advance is necessary.
Effective June 23, 2020 LAO will be making changes to its certificate coverage for CCB appeals.
LAO will be offering an additional ten (10) hours to the current 25 hours allocated on the CCB appeal tariff (excluding hearing time). This increases the total coverage on the certificate to 35 hours. Any existing CCB appeal certificate with an opinion certificate issued on or after March 13 is eligible for an additional 10 hours.
LAO will be introducing a new 10‑hour certificate for motions for emergency/urgent CCB treatment orders held in superior court. This coverage is effective immediately.
Below is a link to the regional contact list for LAO staff. This list may be published and/or distributed to permit members of the private bar to reach LAO staff to facilitate bail matters on Monday. This list should not be considered the final word on the topic. It will be updated on a periodic basis. Updated lists will be distributed as they become available.
As part of LAO’s continuing response to COVID-19, lawyers will be able to apply for legal aid coverage on behalf of in‑custody clients requesting temporary absence permits.
Lawyers may immediately start work related to obtaining TAPs on your clients’ behalf, but you must submit an application, once available, to receive coverage.
As part of LAO’s emergency response to the COVID pandemic, lawyers will now be able to bill (as of July 26, 2020) Legal Aid Online for:
COVID JPT Myers (s.525) reviews
Further information may be obtained at:
Other changes include extending billing deadlines, expanding criteria for exceptional circumstances, treating teleconference and video appearances as physical appearances, and allowing the option to bill a certificate as a block fee or by the hourly tariff.
The Ministry of the Solicitor General has worked with its vendor to enhance the current Offender Management Telephone System (OTMS) to allow inmates to access both collect calls and “debit” calling.
Whereas the old system only allowed for collect calling (which does not allow for calls to cell phones), under the enhanced system, debit calling is enabled and funded by the ministry. Debit calling allows for calls to cell phones.
On April 1, 2020, Legal Aid Ontario (LAO) is raising the eligibility threshold by six per cent for its certificate program and for clinic law services.
In response to the COVID-19 pandemic, lawyers across Ontario may, temporarily, apply for legal aid on behalf of clients that are in custody, when clients cannot.
Effective march 24, 2020, as part of Legal Aid Ontario's response to the COVID-19 pandemic, they are working to offer more resources to clients through the telephone and online.
Effective as of end of day on Friday, March 20, 2020, LAO has stopped all in-person staff and per diem services in the courthouses across the province until further notice. They will be using their normal system of staff and per diems for all services done remotely. Certificates will still be available in the normal course.
During the week March 16, of LAO announced that it will be temporarily re-instating the bail block to the private bar with certificates in order to respond to demand as a result of COVID-19. Details to follow. Panel lawyers should know that they can do bails (on certificates) and be paid per the former rules.
LAO as a temporary and emergency measure to address the COVID pandemic will provide expedited transcript rates for bail reviews. These expedited rates will be offered as an inherent disbursement on the billing portal. LAO hopes to have made the necessary changes to the billing portal by early next week. Recall that LAO has recently, as a response to the COVID pandemic, waived any assessment of merit in issuing bail review certificates.
During the week of March 16, LAO announced that, in order to ensure that those in remand are getting fair treatment and timely access to justice, LAO will no longer assess merit prior to granting bail review authorizations.
FOLA has long believed that a sustainable, appropriately and adequately funded legal aid system is critical to the efficient, effective and just functioning of Ontario's justice system.
Ontario has one of the best legal aid systems in the world, but it is far from perfect and FOLA is actively involved in a number of initiatives to make the system better for both low-income clients who use the system and the lawyers who utilize funding from Legal Aid.
In light of the economic hardships created by the COVID-19 outbreak, the Alliance for Sustainable Legal Aid (ASLA) wrote to the Attorney General on April 28th request support for additional funding for Legal Aid Ontario (LAO) . Read our letter here.
**LEGAL AID SERVICES ACT UPDATE**
In the Fall of 2019, FOLA's Legal Aid Committee met with the Alliance on Sustainable Legal Aid (ASLA) during our review phase of Bill 161. Learn more about the review process on the Legal Aid Services Act.
**C-75 BILLING UPDATE**
As you may know, a number of offences that used to be straight indictable are now hybridized, and there is a new maximum presumptive penalty of two years (up from six months) for most summary charges. As a result, LAO has made some billing changes:
Legal Aid Online updates to reflect Bill C-75 amendments to Criminal Code
Bill C-75 amendments to the Criminal Code of Canada include the hybridization of about 118 straight indictable offences, and standardization of a new maximum term of imprisonment for the majority of summary conviction offences to two years, less a day.
Legal Aid Online has been updated to reflect the following changes
Updates apply to certificates issued before and after September 19, 2019.
LAO will not seek to recover overpayments for newly hybridized matters that proceed by summary conviction and that were billed as indictment prior to the Legal Aid Online updates.
Offences now exempt from block fees will remain so.
Summary conviction block fee rates are based on the maximum term of imprisonment: where the maximum term was six months prior to C-75, the Summary I rate is payable; where it was greater than six months, the Summary II rate is payable.
LAO recognizes that the amendments to the Criminal Code that standardize the maximum term of imprisonment for most summary conviction matters effectively eliminate the justification for two block fee rates.
LAO will, in consultation with the bar, set a cost-neutral single block fee rate. Until this rate has been determined, summary conviction block fees will be paid at current rates.
Questions? Contact the Lawyer Service Centre at 1-866-979-9934.
**UPDATE REGRADING FAMILY LAW LEGAL AID - FEBRUARY 2020**
As of February 3, 2020, LAO’s Family Case Management program is expanding to include:
This is in addition to helping lawyers manage costly and complex CYFSA‑extended society care matters likely to cost more than $8,000—the program’s previous focus.
The expanded program will ensure more family cases are eligible for budgets on costly cases and proceedings. Lawyers are to apply to the program if the hours under the tariff are not sufficient, and they predict that their budget will exceed $12K or $8K for family/domestic or child protection cases respectively.
Extended society care matters are eligible for case management where the certificate was issued prior to February 3, 2020. All other CYFSA and domestic family certificates issued on or after February 3 are eligible for case management.
The pilot will be evaluated after three years
**UPDATE REGRADING REFUGEE LEGAL AID - AUGUST 2019**
Further to the federal government’s August 12, 2019 announcement of $25.7 million in one-time funding for immigration and refugee services, Legal Aid Ontario has restored services in these areas for the remainder of the fiscal year.
Legal aid coverage for immigration and refugee services has resumed at levels offered prior to April 15, 2019, when certain services were suspended.
For Refugee Protection Division matters, while coverage remains the same, the way LAO authorizes it has changed for an interim period. LAO will now issue a Basis of Claim-alone certificate and a second nine-hour certificate for the RPD hearing. Clients who received a BOC preparation-only certificate between April 15, 2019 and August 16, 2019, are also be eligible for a hearing certificate.
This is very good news and allows LAO to restore immigration and refugee services for the remainder of the year, while they continue to advocate for stable funding.
**CHANGES TO LAO's DISTRICT STRUCTURE & TO THE REGIONAL SERVICES DIVISION - SEPT 2019**
**IMPORTANT UPDATES TO THE CERTIFICATE POLICIES & PROGRAMS - JUNE 2019**
**CHANGES TO LEGAL AID ONTARIO's FAMILY AND CRIMINAL DUTY COUNSEL PROGRAMS - JUNE 2019**
REVIEW OF THE LEGAL AID SERVICES ACT
Over the summer of 2019, FOLA, as part of the Alliance for Sustainable Legal Aid (ASLA) reviewed the Legal Aid Services Act (LASA) and we continue to monitor this file.
CALL FOR COMMENT – SHORT-TERM PRO BONO LEGAL SERVICES RULES
In the spring of 2019, the Law Society sought input on proposed amendments to the lawyers’ Rules of Professional Conduct, which would extend the modified conflict of interest standard in the short-term pro bono legal services rules to Legal Aid Ontario lawyers, who provide short-term pro bono legal services.
They also sought input on whether the short-term pro bono legal services rules should be expanded to include other not-for-profit service providers. Currently, only lawyers who provide services through a Pro Bono Ontario program are exempt from performing conflict of interest searches when providing pro bono services.
You can read FOLA's submission here.
You can read TLA's submission to the LSO Professional Regulation Committee here.
FOLA's Legal Aid Committee & ASLA
FOLA has an active Legal Aid Committee, currently chaired by FOLA executive member Terry Brandon, and is involved with the Alliance for Sustainable Legal Aid (ASLA) which has been the primary vehicle for interested legal organizations to lobby for more funds to service more of the population.
In the April 2019 Ontario Budget, Legal Aid funding cut nearly 30% ($133 million). It was also announced that the organization could no longer use provincial funds for refugee and immigration cases.
FOLA is working aggressively with all ASLA members to ensure that these cuts do not impact front line services. Together, we have written formal letters requesting meetings with the Attorney General of Ontario (one letter regarding the cuts in general and one letter regarding the cuts to refugee funding), the federal Minister of Justice, and the Chair of Legal Aid Ontario. Updates will be forthcoming.
The members of ASLA are:
Legal Aid Deficit
In December 2016, FOLA and other stakeholders learned that Legal Aid Ontario was facing a $26 million deficit as a result of higher than anticipated up-take on the expanded services first introduced in 2015. FOLA responded to this news in which we expressed our concern with this development and with the potential impact it might have to clients and to the certificate-bar system in Ontario.
The Attorney General also commissioned a review of Legal Aid to determine if there were steps to take to avoid the same problems in the future. The results of this review can be found at this link.
Looking forward, FOLA will continue to work with Legal Aid Ontario and other stakeholders to strive for an adequately funded legal aid system that maintains the private bar at the centre of the legal aid system. This means we will continue to work through ASLA and undertake our own advocacy efforts.
The relationship between the Private Bar and Legal Aid Ontario
The relationship between the private bar and Legal Aid Ontario has, over time, been a fractious one, but FOLA has attempted to take constructive steps to improve this relationship and to ensure the avenue of communication is always open between LAO and the bar. At nearly every Plenary meeting, LAO participates in panel discussions; FOLA regularly provides updates on LAO activities to its members; and, if problems arise, FOLA engages with senior executives of LAO to address issues and find solutions.
FOLA also strives to invite LAO representatives to its bi-annual plenary meetings as often as possible to facilitate an ongoing dialogue between LAO and the practicing bar.
If members of the private bar encounter specific problems or issues with LAO, they are encouraged to contact Katie Robinette, Executive Director (firstname.lastname@example.org) directly so the issues can be dealt with quickly.
Here are some handy links from Legal Aid Ontario (LAO).
REVIEW OF THE LEGAL AID SERVICES ACT
2020 CONSULTATIONS - CLINICS
With the recent passing of the Legal Aid Services Act, 2020, LAO must now implement a clear framework for the delivery of legal aid services by community legal clinics serving communities throughout Ontario. The new framework is an important part of LAO’s Modernization Project, which aims to update and modernize the legal aid system and allow them to be more responsive to community needs.
LAO is seeding input as they develop the new framework for the delivery of legal aid services by clinics to ensure continuity of services to clients when the new legislation comes into force, and to build a foundation for continuous improvement and enhancement going forward.
LAO's goal is to receive the best information and advice to inform LAO’s work in establishing a legal aid system that best serves their clients, in accordance with our mandate and accountability under the Legal Aid Services Act, 2020 (LASA 2020). The perspectives of clinics, who have long served some of our most vulnerable clients, are vital to this process.
Please visit the LAO Website for information on consultations, as well as initial clinic modernization consultation materials and ways to participate in this first phase of consultation.
On August 15, 2019, FOLA attended three Rountables Chaired by Legal Aid Ontario Chair Charles Harnick. The first meeting was on Criminal Law Legal Aid, the second was on Immigration and Refugee Legal Aid, and the third was on Family Law Legal Aid. All were to discuss the Legal Aid Modernization Project and the Legal Aid Services Act Review.
On September 10, 2019, FOLA presented our submission regarding the review of the Legal Aid Services Act to the Attorney General of Ontario, the Chair of Legal Aid Ontario, the Law Society of Ontario, and the Chair of the Alliance for Sustainable Legal Aid. You can read that submission here.
FOLA will continues to meet with the Alliance for Sustainable Legal Aid (ASLA) in advance of government legislation to amend the Act. We also continue to enjoy open dialogue with the Minister's office and Legal Aid Ontario.
CLICK HERE TO READ THE LEGAL AID SERVICES ACT
In its 2018 annual report, the Auditor General of Ontario recommended that the Ministry of the Attorney General work with Legal Aid Ontario (LAO) to conduct a comprehensive review of the clinic service delivery model and identify areas for improvement. The Ministry responded by agreeing to conduct a comprehensive review of the Legal Aid Services Act (the Act) and the service delivery model and identify areas for improvement, in consultation with LAO. This intention has been reiterated in the Attorney General’s April 12, 2019 letter to LAO’s CEO.
Legal Aid Ontario recently moved to a new District structure that very closely matches the Ontario Court of Justice (OCJ) judicial districts, except for the North where they now have one District while the OCJ has two. This results in the total number of districts having been reduced from 10 to 6.
The objective of the reorganization was to rationalize and realign the districts to improve the efficiency of services to clients, especially with regard to supporting staff and relationships with stakeholders and service providers.
The six (6) new Districts and their Directors General are:
These changes took formal effect on September 16, 2019 but the operational processes and systems necessitated by some of these changes will require some months to complete.
There will be no disruption to the legal aid services that clients and service providers receive from LAO from these changes. The objective is that this realignment will be seamless in terms of LAO clients, service providers, justice partners and stakeholders.
You may have already been contacted by Legal Aid Ontario, at the local level, to discuss implementation of recent changes at LAO. If you have not been contacted and would like to discuss the recent changes, please let FOLA know and we can facilitate a meeting for you and your members.
Contact Katie at email@example.com and put LEGAL AID ONTARIO in the subject line.
LAO is changing the way they fund, provide and, manage legal services while ensuring their priority remains to provide quality frontline service to their clients. Certificate policies and programs will be implemented in stages. Below is a summary of the changes announced on June 12, 2019:
Certificate acknowledgement and private bar duty counsel appearance fees
· LAO will no longer pay acknowledgement and appearance administrative fees for accepting certificate and duty counsel shifts.
· For acknowledgement fees, this change takes effect June 12, and for appearance fees, June 26, 2019.
· Certificate lawyers will continue to be paid by the hour or matter.
You will now receive payment in 28 days instead of 14, which includes duty counsel accounts. Accounts where disbursements or discretion are requested will continue to be paid with the standard 60-day timeframe.
· Certificate lawyers may no longer bill for bail hearings on block fees. On these matters, duty counsel will continue to be available to provide bail services. For more complex tariff cases, including those in LAO’s Big Case Management program and matters set for trial, certificate counsel may bill for bail hearings.
· Meritorious bail reviews will be funded at 5 hours per bail review (instead of 10). Certificate counsel will also resume applying for authorization before proceeding on bail reviews. In 2015, LAO increased bail review coverage from five to 10 hours to encourage the private bar to bring more bail reviews and address over-reliance on onerous conditions of release. The additional hours did not result in increased bail review applications.
· When using a publicly-funded Gladue report as part of sentencing submissions for Indigenous clients on tariff matters, lawyers will be allowed a 3-hour Gladue authorization (instead of 5). For block fees, lawyers will receive a Gladue “enhancement” based on approximately 3 hours of additional time, (instead of 5).
· Lawyers representing clients with mental health issues, including at fitness hearings and mental health court, on block fee matters, will receive an “enhancement” for approximately 2.5 hours (instead of 5) for additional work that may be needed to represent these clients.
· Because of technological and legal advances, extra coverage for DNA sentencing submissions will no longer be available, and submissions can be covered under the current base tariff. The block fee base rate that includes DNA submissions will remain the same.
· Criminal duty counsel will:
· LAO will continue to provide full certificate coverage for people experiencing domestic violence, including motions to change and emergency advice.
· Certificate counsel will no longer be able to bill for variations or motions to change where domestic violence is not an issue. Instead, duty counsel and family law service centres will, where available, perform these services, when possible.
· Counsel will be able to bill for up to two case conferences instead of multiple conferences.
· LAO will no longer issue certificates for independent legal advice relating to mediation or separation agreement certificates. Between 2015-16 and 2017-18, 60 percent of separation agreement certificates were unused, or required additional certificates or services. This figure was 70 percent for independent legal advice certificates for mediation, not fulfilling the certificates’ original intent.
· Legal assistance in child protection matters remain unchanged.
· Family duty counsel will
Prioritize clients with the highest risk
Provide services to clients that are legally and financially eligible
Establish a framework for consistent services
Monitor, measure and adapt to any changing demand for duty counsel services
Work with stakeholders to effectively implement any changes
· A modified merit test will now be applied to Ontario Review Board appeals ensuring meritorious cases continue to be funded, similar to the one introduced for Consent and Capacity Board appeals in 2017. We continue to provide funding for lawyers to represent psychiatric patients exercising their right of appeal in meritorious cases.
· LAO will continue to fund certificate lawyers for meritorious CCB and ORB appeals over the governing regular tariff: for ORB appeals, lawyers will be funded up to 35 hours (instead of up to 50) and for CCB appeals lawyers will be funded up to 25 hours (instead of up to 50).
· Resources will be dedicated to services for psychiatric patients (instead of substitute decision makers)
· Five hours of certificate coverage will be available for parole matters (instead of 10). This ensures clients have access to the services they need. Ontario is one of few provinces which provide these services.
· Resources will be dedicated to services for prisoners to have access to statutory release by way of parole and to extraordinary remedy (instead of “faint hope” parole applications and “gating hearings”.
· LAO staff will be determining eligibility for the test case program instead of an external committee
· LAO will be introducing more defined discretionary processes and criteria.
For questions or concerns about these changes, please do not hesitate to contact David McKillop at Legal Aid Ontario at firstname.lastname@example.org.
On June 17, 2019, Legal Aid Ontario announced changes to the duty counsel program, effective July 7th. Specific details as to what Family Program duty counsel will do/won’t do can be found here and the Criminal Program changes can be found here.
The central changes are as follows, though the detail is really in the service guides: